140 Iowa 651 | Iowa | 1909
— I. On the issue as to whether the mortgage was fraudulent as against appellant, the evidence sustains the finding of the lower court, which held against
appellant’s contention. It is true that the , i n i . , mortgage was executed only one day prior to the rendition of judgment against (x. laylor Wright in an action pending against him by the receiver; but, until the receiver recovered his judgment, he had no lien upon Wright’s property, and, unless the mortgage was taken for the purpose of defrauding him, the mortgagee acquired a prior lien. The burden of proving that the mortgage was fraudulent was on the receiver, and the evidence is not sufficient to establish that fact. The most that can be said is that the mortgage was taken by Engle as additional security because he feared .that by reason of the financial embarrassments of the mortgagor a prior mortgage which-he held on other property would be found insufficient to secure his claim. A creditor may without fraud secure priority by taking a mortgage on the property of his debtor, who is to his knowledge in financial straits.
the lien of the mortgage, because the mechanic’s lien had attached to the property . . prior to the execution of such mortgage. The judgment in the mechanic’s lien, foreclosure suit, instituted by Petty against Wright, under which Elson, as receiver, acquired title to the mortgage property by buying in the certificate of sale thereon and taking a sheriff’s deed, was not rendered, as already indicated, until after the